By Funto P. Seton and Esteban Shardonofsky

Seyfarth Synopsis: The US Supreme Court has never directly decided and the federal courts of appeal have not reached a unanimous decision on whether the “but for” or “motivating factor” standard applies to retaliation claims under the Family and Medical Leave Act (FMLA). An interlocutory appeal recently taken from the federal court in the Western District of Texas may give the Fifth Circuit a chance to weigh-in directly on this issue and provide clarity for litigants and the lower courts throughout Texas, Louisiana, and Mississippi.

There is currently a circuit split on the proper standard for proving retaliation claims under the FMLA. Some circuits (including the Second and Third) require plaintiffs to prove that their protected conduct motivated the employer’s decision to take an adverse action. Under this “motivating factor” analysis, the plaintiff can still prevail even if other legitimate factors also motivated the employer’s decision (monetary damages may be disallowed if the employer demonstrates that it would have taken the same action in the absence of an impermissible motivating factor). The First Circuit, on the other hand, applies the more stringent “but-for” standard to FMLA retaliation claims. Under that test, the plaintiff must show that the employer would not have taken the adverse employment action but for an improper motive (that is, except for the employer’s bias or retaliatory animus). Other circuits, including the Fifth Circuit, have not squarely decided the issue. The Fifth Circuit’s pattern jury charge for FMLA retaliation claims uses a “but for” standard, but also recognizes that “it is unclear whether, in the Fifth Circuit, . . . whether the motivating-factor standard may be used.”

Recently, in Crankshaw v. City of Elgin, a federal jury found in favor of the plaintiff and awarded damages on her FMLA interference and retaliation claims. Following the jury trial, The Court granted the defendant’s interlocutory appeal to the Fifth Circuit to decide the correct causation standard applicable to FMLA retaliation claims. As of this writing, it remains to be seen whether the Fifth Circuit will agree to hear the case.

If the Fifth Circuit picks up the case, it will mostly likely look to the Supreme Court’s Gross v. FBL Financial Services, Inc. and University of Texas v. Nassar decisions for guidance. In Gross, the Court decided that discrimination claims under the Age Discrimination in Employment Act must be proven under the “but for” standard because the plain language of the statute prohibits discrimination “because of” age, whereas Title VII’s prohibition on discrimination explicitly refers to “motivating factor” and does not include the “because of” language. Likewise, in Nassar, the Supreme Court held that retaliation claims under Title VII of the Civil Rights Act of 1964 are governed by the “but for” standard because: (1) the plain language of the statute prohibits retaliation “because of” the employee’s protected conduct; and (2) the retaliation provision does not mention “motivating factor.”

Takeaway for Employers

Given that the FMLA provision prohibiting retaliation (29 U.S.C. § 2615(a)(2)) similarly does not mention “motivating factor” and instead uses the phrase “because of,” it is likely that the Fifth Circuit, following the reasoning in Gross and Nassar, will find that the “but for” standard applies.

A ruling from the Fifth Circuit clarifying the proper causation standard for FMLA retaliation claims will be welcomed news for litigants and lower courts. The decision will likely affect whether and how often employers obtain summary judgment on these claims and how often these cases will proceed to trial. If the Court determines that the less stringent “motivating factor” standard applies, employers will likely be less successful on summary judgment. Looking ahead, the Fifth Circuit’s ruling may also give the Supreme Court an opportunity to weigh in as well and resolve the current circuit split on this issue.

If you have any questions regarding this or any related topic please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.